Thompson v. Parsley

• Decision Date: 26 January 1926
• Docket Number: (C. C. No. 375.)
• Citation: 131 S.E. 468
• Court: West Virginia Supreme Court
• Parties: THOMPSON et al. v. PARSLEY.

131 S.E. 468

THOMPSON et al.

v.PARSLEY.

(C. C. No. 375.)

Supreme Court of Appeals of West Virginia.

Jan. 26, 1926.

(Syllabus by the Court.)

Certified Questions from Circuit Court, Mingo County.

Bill by Willie J. Thompson and others against Walter M. Parsley to review a chancery cause in which they were defendants. After overruling a demurrer to plaintiff's bill, the trial court certified questions. Ruling reversed.

Stokes & Hansbarger, of Williamson, for plaintiffs.

Stafford & Rhodes, of Williamson, for defendant.

WOODS, J. The questions certified here involve the sufficiency of a bill of review.

The plaintiffs seek to review a chancery cause, in which they were defendants, instituted and prosecuted to final decree in the circuit court of Mingo county, by Walter M. Parsley. It appears from the record that the bill was regularly filed; that the defendants filed a joint demurrer and answer therein, to which answer there was a general replication; that proofs were duly taken on the issues raised by the pleadings; and that upon the hearing the court entered a decree in favor of the plaintiff. This decree was entered on February, 1925. On the following May, the said plaintiffs filed their bill of review setting up the said bill, answers, orders, and decrees, and making the sole averment that said final decree is erroneous and ought to be set aside and reversed.

Under the practice approved by our decisions, you cannot look to the depositions, nor can you correct an erroneous finding or decision of fact on the evidence, which you can only do on appeal; but you can look to the bill and other pleadings, and to all decrees and orders. The error of law must be made out on facts admitted in the pleadings, or stated in the decree as facts found. Dunn's Ex'rs v. Renick, 22 S. E. 66, 40 W. Va. 363; Core v. Strickler, 24 W. Va. 697; Marshall v. Nicollette Lumber Co., 85 S. E. 723, 76 W. Va. 531.

The plaintiffs in the bill under consideration content themselves with the mere declaration that there is error in the decree complained of. What that error is, is not pointed out. This court has repeatedly held this procedure necessary. For instance: (1) Where an absolute decree against infants has been rendered, without any plea or answer in their behalf, they having no day in court to show cause against it. Lee v. Braxton, 5 Call (9 Va.) 459. (2) Where the court, having jurisdiction of the parties and the subject-matter, renders a decree which is erroneous because the plaintiff had no cause of action or right to bring the suit. Peirce v. Graham, 7 S. E. 189, 85 Va. 227. (3) Where there is an error in the decree in the calculation of interest. Bank v. Shirley, 26 W. Va. 563. (4) Where a decree is void, because foreign to the purpose and nature of the suit. Waldron v. Harvey, 46 S. E. 603, 54 W. Va. 608, 102 Am. St. Rep. 959. (5) Where a decree ascertains the amounts and priorities of all the debts sought to be established in the cause, as liens on real estate, orders said debts to be paid and the sale of the real estate on which said debts are adjudged to be liens. Core v. Strickler, supra.

There are but two causes for which a bill of review will be admitted or allowed, and they are either error in law, appearing on the face of the decree, or some new matter, which has arisen in time after the decree and not any new proof, which might have been used, when the decree was made, by the exercise of reasonable diligence. Amiss v. McGinnis, 12 W. Va. 371. The bill of review in the instant case is evidently filed for errors of law upon the face of the decree and for such errors alone. The case sought to be...